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Judge makes ruling on long-running property dispute

The Supreme Court has refused to grant a possession order for a Hamilton Parish property despite the tenant’s refusal to pay maintenance fees.

Shelly Hall Properties Ltd had launched legal action against Elmore and Nicole Warren in 2018 after the couple stopped paying maintenance fees for the condominium in 2015 as a result of a dispute between the parties.

In 2019, a magistrate ordered the couple to pay the landlord $13,359 in overdue fees, and the landlord subsequently sought a possession order to reclaim the property.

But the Supreme Court found that the magistrate had not been made aware about a clause in the lease which required arbitration when disputes arose.

Puisne Judge Larry Mussenden said: “It is clear on the documentary evidence that in the Magistrates’ Court proceedings the Warrens’ breaches of the clauses of the 2007 assignment lease – that is, failing to pay the maintenance fees – were put before the magistrate.

“It is on this basis that the magistrate granted judgment against the Warrens.

“However, it is also clear that in the absence of the Warrens at the hearing, the landlord did not put the arbitration clause of the 1992 anchor lease before the magistrate.

“Had the landlord done so, then it is likely that the magistrate would have given effect to the mandatory arbitration clause by refusing to grant judgment or inviting submissions from the Warrens on the point.”

The judge added that the matter “went off the proper track from the very start” and did not get back on track.

The court heard that Shelly Hall Properties Ltd launched proceedings in Magistrates’ Court after the Warrens stopped paying maintenance fees for their condominium.

The Warrens responded that they had run into numerous issues at the property that the landlord was required to resolve and filed a $6,100 counterclaim.

Magistrates’ Court ruled in favour of the landlord, ordering payment of the $13,359 owed, and the landlord subsequently applied to the court for possession of the property.

But the Warrens called on the court to stay the possession matter pending the results of arbitration.

The Warrens told the Supreme Court that while they had assistance from a lawyer for some of the proceedings, they largely represented themselves and did not raise the issue of arbitration because they were not familiar with the law.

While counsel for Shelly Hall Properties Ltd argued that the Warrens had waived their right to arbitration by filing a defence and counterclaim to the case, Mr Justice Mussenden found that the application to possess the house should be stayed.

However, the judge also said that it would be unfair to the landlord to be left without the fees it is owed.

“I accept that the Warrens have a dispute over various matters and the payment of maintenance fees that they would like to take to arbitration,” Mr Justice Mussenden said.

“As I have not heard any evidence that the Warrens are challenging absolutely all the maintenance services, it follows to me that the Warrens are not challenging the full amount of the maintenance fees that they are obliged to pay as they are still living at the property and receiving benefits of maintenance.

“To that point, as a condition of granting a stay, the Warrens should pay some maintenance fees, pending an appeal and an arbitration, the amount being approximately in the range of 50 per cent as they dispute some services and do not dispute other services.”

The judge ordered the Warrens to pay half of the $13,359 judgment from 2019, along with half of the maintenance fees accrued since then – about $29,971 as of September.

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